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Decision No. 14,520

Appeal of ARNOLD ECKERT from action of the Board of Education and the Superintendent of Schools of the West Irondequoit Central School District regarding the use of public funds.

Decision No. 14,520

(December 21, 2000)

Harris Beach & Wilcox, Esqs., attorneys for respondents

MILLS, Commissioner.--Petitioner, a resident of the West Irondequoit Central School District, appeals certain actions taken by the Board of Education and the Superintendent of Schools with respect to a special district meeting. The appeal must be sustained in part.

Petitioner alleges that respondents improperly expended public funds to exhort district voters to support a proposed capital project at a referendum held on December 7, 1999. Petitioner alleges that respondents authorized the use of district employees to carry out a campaign to pass the proposition and that exhortative materials were created, copied and circulated by mail or sent home with students using district resources. Petitioner requests that I instruct respondents to cease such partisan activities in all future district budget and proposition votes.

Respondents deny petitioner's allegations and contend that the materials distributed consisted of factual, nonpartisan information regarding the proposition to be voted upon. Respondents also contend that the petition should be dismissed for lack of a clear and concise statement of facts to support petitioner's claim and for improperly seeking an advisory opinion or declaratory ruling.

Pursuant to "275.10 of the Commissioner's regulations, the petition must contain a clear and concise statement of petitioner's claims showing that the petitioner is entitled to relief. "Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of" (8 NYCRR "275.10). Where, as here, petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate, absent prejudice to the opposing party (Appeal of Shaver, 38 Ed Dept Rep 570, Decision No. 14,096).

The petition alleges that respondents improperly expended public funds, in the form of employee salaries and the costs associated with the creation, reproduction and circulation of partisan materials intended to exhort district voters to support the proposed capital project submitted at the December 7, 1999 referendum. The specific materials in issue are referenced in and attached to the petition as petitioner's exhibits. While respondents allege in a general manner that they are prejudiced by the wording of the petition and presentation of the exhibits, I find that respondents' responsive papers adequately address each of petitioner's allegations and each exhibit. Therefore, I decline to dismiss the petition as violative of 8 NYCRR "275.10.

Respondents also contend that the petition improperly seeks an advisory or declarative opinion. The Commissioner does not issue advisory opinions or declaratory rulings in appeals brought pursuant to Education Law "310 (Appeal of Lambert, 37 Ed Dept Rep 599, Decision No. 13,937; Appeal of Martin, 31 id. 441, Decision No. 12,692). However, the petition alleges that respondents have violated the law by expending public funds to advocate a partisan position with respect to the December 7, 1999 referendum on a proposed capital project and requests that I instruct respondent to cease such partisan activity at all future district budget and proposition votes, in order to insure the proper use of district funds. Accordingly, the petition goes beyond merely seeking my opinion concerning the propriety of respondents' actions, to request that respondents be directed to cease such partisan activities at public expense in future votes. Whether or not respondents engaged in the conduct alleged is a justiciable issue, and I find no basis to dismiss the petition as improperly seeking an advisory opinion or declaratory ruling (see Appeal of Goldin, 39 Ed Dept Rep 323, Decision No. 14,250).

Respondents object to the reply submitted by petitioner on the grounds that it is not verified pursuant to 8 NYCRR "275.5. However, the original reply filed with my Office of Counsel includes the proper verification. While petitioner should have included a copy of the verification with the copy of the reply served on respondents, the absence of such verification in respondents' copies does not require that the reply be disregarded (Application of Eisenkraft, 38 Ed Dept Rep 553, Decision No. 14,092).

Respondents also object to the reply as containing new allegations in violation of 8 NYCRR "275.14, which limits the reply "to each affirmative defense contained in an answer." The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Hollister, 39 Ed Dept Rep 109, Decision No. 14,188). However, what respondents characterize as "new allegations" in the reply, I find to be permissible responses by petitioner to new material contained in respondents' Exhibits G, H, I and J to their answer.

Nevertheless, I find that petitioner has failed to meet his burden of proof with respect to these allegations. Petitioner alleges that respondents' Exhibit G, "A Guide for teachers and support staff surrounding the WICSD Capital Project", violates Education Law "414(1), and contains opinion and exhortative material "persuasive to the staff". Respondents' Exhibit G consists of respondent board's directions to district staff, in a question and answer format, on how they are to discuss issues and present information on the capital project to students, parents and the public. I find that respondents' Exhibit G is a proper exercise of respondent board's authority to advise its employees with respect to their duties and, as such, constitutes a legitimate school purpose. Education Law "414(1), which concerns the use of school grounds for certain, specified public, non-school purposes, is entirely inapplicable to the internal instructions of a school board with respect to the duties of its employees. Similarly, as internal employer-employee instructions, respondents' Exhibit G does not constitute an improper use of district funds to advocate a partisan position in violation of Phillips v. Maurer, 67 NY2d 672.

Petitioner next alleges that respondents' Exhibits H, I and J, which are, respectively, a PTA letter to parents, a teacher's association memorandum and a letter to high school alumni from "The Capital Project Alumni Association", were printed and distributed using district funds, staff and resources. However, other than petitioner's conclusory allegations, there is nothing in the record to establish such improper use. The burden is on petitioner to allege and prove facts upon which relief may be granted, not on the respondent to rebut conclusory allegations (Appeal of Keiling, 25 Ed Dept Rep 122, Decision No. 11,517; Matter of Lawson, 24 id. 132, Decision No. 11,343).

A board of education has a right to present informational material to the voters concerning a proposed annual budget or propositions (Education Law "1716, Appeal of Weaver, 28 Ed Dept Rep 183, Decision No. 12,076). A school district may disseminate only objective, factual information (Application of Hennessey, 37 Ed Dept Rep 494, Decision No. 13,911; Appeal of Crawmer, 35 id. 206, Decision No. 13,517). "To educate, to inform, to advocate or to promote voting on any issue may be undertaken, provided it is not to persuade nor to convey favoritism, partisanship, partiality, approval or disapproval . . . of any issue, worthy as it may be (Stern v. Kramarsky, 84 Misc.2d 447). While a board of education may disseminate information "reasonably necessary" to educate and inform voters, its use of district resources to distribute materials designed "to exhort the electorate to cast their ballots in support of a particular position advocated by the board" violates the constitutional prohibition against using public funds to promote a partisan position (Phillips v. Maurer, supra; Appeal of Allen, 32 Ed Dept Rep 69, Decision No. 12,761). Moreover, it is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election (Appeal of Dinan, 36 Ed Dept Rep 370, Decision No. 13,752; Appeal of Carroll, 33 id. 219, Decision No. 13,030; Appeal of Weaver, 28 id. 183,Decision No. 12,076). Statements that do not specifically urge a "yes" vote may nevertheless violate the holding in Phillips v. Maurer, supra, if such statements otherwise seek to persuade or convey support for a particular position (Appeal of Hubbard, 39 Ed Dept Rep 363, Decision No. 14,259; Appeal of Miller, 39 id. 348, Decision No. 14,256; Appeal of Meyer, et al., 38 id. 285, Decision No. 14,034). Even indirect support, such as a school board giving a PTA access to its established channels of communication to parents to espouse a partisan position that the board itself was prohibited from doing directly, has been deemed improper (Stern v. Kramarsky, supra; Appeal of Meyer, et al., supra; Appeal of Saba, 36 Ed Dept Rep 233, Decision No. 13,710; Appeal of Allen, supra).

Petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Chechek, 37 Ed Dept Rep 624, Decision No. 13,943). I have examined petitioner's Exhibits A through J, which consist of various materials prepared and distributed by the district to district residents, including a 24-page booklet, newsletters, flyers, a postcard and a letter from the superintendent to certain district residents. While much of the information conveys objective, factual information concerning the proposed capital project, certain materials constitute impermissible advocacy in favor of passage of the proposition.

Petitioner's Exhibit A, a 24-page booklet entitled "The "Quote"" contains the following passages which, in my view, go beyond providing objective, factual information to instead exhort or advocate for the passage of the proposition. At the very least, by their wording, they convey an obviously partisan position:

1. (page 2)

"The proposed project is absolutely critical in order to halt further decay in our facilities. But more than that, it represents a cost-effective opportunity to invest in the future of West Irondequoit. It makes financial sense and practical sense. It will enhance the value and quality of our community. Most of all, it will support our students and teachers in their pursuit of academic excellence. Our children deserve no less."

2. (page 3)

"The closer one looks, the more compelling and necessary this project becomes. . ." [emphasis added]

3. (page 5)

"The favorable financial conditions surrounding this project make it a prudent and far-sighted undertaking. The needs it will meet in supporting current and future learning in West Irondequoit make it a necessary one [emphasis added]."

Petitioner's Exhibit A also contains "Excerpts from

the Superintendent's Opening Day Speech to faculty and Staff" (page 22) and "More Excerpts" (page 23). These excerpts contain little to no objective, factual information. Rather, the speech is more in the nature of a call to "rally the team" in support of the passage of the proposition, quoting from the likes of Winston Churchill, in a manner that is factually irrelevant to the issue before the voters (Appeal of Miller, supra; Appeal of Meyer, et al., supra; Appeal of Gravink, 37 Ed Dept Rep 393, Decision No. 13,888; Appeal of Rampello, 37 id. 153, Decision No. 13,830).

Petitioner's Exhibit B is a two-sided flyer, with one side, labeled "Fast Facts", consisting of a series of questions and answers about the proposed capital project. The following statements impermissibly advocate in favor of passage of the building bond proposition:

1. "What other consequences will occur as a result of our failure to ACT NOW? [emphasis added]

Further delay in our ability to meet programmatic needs, address safety & security issues, structural codes & state mandates, loss of talented staff; loss of ability of community to attract homebuyers; loss of property values."

This statement is speculative and not factually objective, to the extent it suggests that a failure to "act now", i.e. vote yes on the capital project, with respect to the capital project would conclusively result in the occurrence of the items listed, particularly with respect to a "loss of talented staff; loss of ability of community to attract homebuyers; loss of property values."

  1. "Is $180,000 difference per building or approximately $79 per household per year worth maintaining our educational excellence and supporting our property value?"


This question also is speculative and nonfactual in that it suggests a conclusive relationship between approval of the capital project and "maintaining our educational excellence and supporting our property values".

  1. "One realtor told us she believes "the [average cost of] $79 per year in additional taxes for the Capital Project is the BEST $79 a year you can spend to ensure the continued value of your home. What will happen to your property value if schools continue to be patched, if teachers continue to improvise for teaching space, if parents and staff have to choose between West Irondequoit Schools and other high achieving districts with much better facilities?"


This passage goes beyond providing objective information to advocate in favor of passage of the budget.

In addition, the opposite side of petitioner's Exhibit

B contains a description of the proposition to be voted upon. While petitioner appears to allege that the description of the proposition is incorrect in that it includes "5 Phases [sic] also stated that are not in the voting booth", petitioner does not provide any proof of the proposition as worded in the voting booth, and does not establish that the information conveyed by the five phrases, which merely describe the steps for implementing the capital project that the proposition seeks authorization for, is exhortative. I do not find such information to constitute impermissible advocacy.

However, Exhibit B also poses the following questions which I find improperly seek to persuade or convey favoritism, partisanship, partiality and approval with respect to passage of the capital project proposition (see Stern v. Kramarsky, supra) by using language that requires affirmative responses, and thus, project approval:

"When you go to the polls on December 7 . . .

Will our schools be renewed for teaching and learning in the 21st century?

Will our students remain competitive with the best schools in the county?

Will our community be sought after by young families because of the quality of life and quality of education it offers?

Will our property values be enhanced by the schools in our neighborhoods?

Will West Irondequoit taxpayers use a unique funding opportunity to rebuild and refurbish our schools?"

Petitioner's Exhibit C, is a postcard distributed to district residents, which merely corrects the cost of the capital project to homeowners with an enhanced STAR discount from $30 to $40 per year. This is objective, factual information. I therefore do not find Exhibit C impermissibly advocates in favor of passage of the proposition.

Petitioner's Exhibit D is a two-sided flyer, entitled "Why new neighborhood schools?" on one side, and a reprint of a "Real Estate Trends" column from the October 30, 1999 edition of the "Democrat and Chronicle" newspaper. Respondents allege in their answer that while a certain amount of district funds were expended for the distribution of the article "Why new neighborhood schools?", the newspaper article was not "produced" or "created" by respondents, and that the newspaper article does not reference respondent school district. Although this may be technically correct, respondents offer no explanation concerning why the newspaper article is printed on the reverse side of the "Why new neighborhood schools?" article, which respondents admit was produced and distributed at district expense. The newspaper article does not contain objective, factual information that is "reasonably necessary" to educate the voters concerning the matters to be voted upon at the special district meeting (Phillips v. Maurer, supra), but instead contains the personal opinions of a local realtors' association concerning the "importance of quality schools in a community" as "food for thought, as school districts throughout the region are putting together referendums to rebuild, expand or rejuvenate schools in preparation for the future". I find that the placement of a newspaper article -- expressing a particular point of view about the relationship of property values to the programs that will be supported if the bond is approved -- on the reverse side of a district-produced and distributed "informational item" conveys a partisan position and is impermissible advocacy.

Furthermore, the "Why new neighborhood schools?" article, in itself, goes beyond providing objective, factual information that is "reasonably necessary" to educate voters. Respondents may provide objective, factual information on the condition of existing school facilities and the relative costs, consequences or other factors to be considered in repairing, vis-a-vis replacing, such facilities. However, as its title suggests, the article, by stressing only such facts and information as is favorable to the construction of new facilities, goes beyond providing an objective, factual discussion of the issues relating to the bond proposition to impermissibly advocate in favor of passage of the proposition.

Petitioner's Exhibit E is a one-sided flyer entitled "You've got questions?. . ." While petitioner contends that the flyer "refers to other exhortative items", I do not find that Exhibit E engages in impermissible advocacy in violation of Phillips v. Maurer, supra. The flyer merely informs the public that information concerning the building project may be obtained by calling the district's telephone information line, visiting the district's website, attending neighborhood coffees, reading the district's special edition of the "QUOTE", or watching project-related cable television programming.

Petitioner's Exhibit F is a one-sided flyer listing certain information under three columns with the respective headings: "A Vote "YES" Means..."; "A Vote "NO" Means ..."; "...And what is Plan B?". Under the "Yes" vote column the flyer lists: "capturing an extra 10% State aid", "greatly improved & new facilities", "more efficient maintenance", and "sustain/enhance community desirability, property values, & educational excellence". This statement is speculative and not factual to the extent it suggests a causal link between approval of the capital project and sustaining/enhancing "community desirability, property values, & educational excellence". These speculative conclusions are not necessary to help voters make an informed decision.

Petitioner's Exhibits G and H are two-sided flyers, entitled "What's in it for...", discussing the capital project's affect on students at the district's Colebrook and Briarwood schools, and district students and residents, in general. Although the second page of each of the flyers contains objective, factual information regarding the construction project's affect on the Colebrook and Briarwood schools, respectively, I find that the first page of each of these flyers is exhortative and impermissibly advocates in favor of passage of the budget, with respect to the slogan appearing at the bottom of both flyers: "The Capital Project benefits us all!".

Petitioner's Exhibit I is a one-sided flyer entitled "Keeping Colebrook's Identity". I find that the flyer provides objective, factual information on the affect of the capital project on the school's separate identity as a K-3 school and does not engage in impermissible advocacy.

Petitioner's Exhibit J is a two-sided letter, dated December 3, 1999, from respondent superintendent to "Residents of Eastgate, Westgate, & Oakview". The letter provides objective, factual information concerning the district's plans with respect to the Oakview school site in the event the capital project is approved by voters, and does not engage in impermissible advocacy. Petitioner appears to allege that respondents, by addressing the letters only to these selected residents, engaged in improper "targeting" of those individuals, as more likely to vote in favor of the proposition, in an attempt to increase their participation in the election. However, the determination of whether a school district engaged in targeting is a question of fact dependent upon the circumstances of each case, and the mere distribution of election information on a less than district-wide basis does not constitute impermissible targeting perse (Appeal of Schadtle and Wilcox, 38 id. 599, Decision No. 14,102). Moreover, on the facts of this case, I do not find that the distribution of the letter constitutes improper targeting. Petitioner's allegation of targeting is speculative and conclusory. There is nothing in the record to establish that these residents would be more likely to favor the passage of the proposition. It appears that the letter is meant to address concerns expressed by these residents with respect to the affect of the capital project on the Oakview school site.

Petitioner's Exhibit K consists of two videocassettes, labeled "Capital Project Video Presentation (Fall 1999)" and "Capital Project Video Collection (pt 2)", that contain programs produced by the district and shown on a local public access channel and at various meetings attended by district residents. While most of the material presented in the programs contained in the videocassette provide objective, factual information, certain programs repeat the same objectionable themes found in the printed materials discussed above.

One program consists of a video of the superintendent's opening day speech to faculty and staff. As indicated above with respect to petitioner's Exhibit A, the speech contains many remarks that impermissibly seek to persuade or convey support for passage of the proposition. To the extent such remarks were disseminated to the public, they constitute impermissible advocacy.

A program entitled "Capital Project Buildings Speak We Must Listen", while providing for the most part objective information on the conditions of various schools in the district, also repeats some of the objectionable themes found in the printed materials. Furthermore, at one point on the program, the assistant superintendent for business and personnel compares the cost per week ($1.52/week) of the project on the average district homeowner to the cost of various items such as a one-year Sunday newspaper subscription, two theatre tickets per year, or a coffee, bagel and cream cheese per week, and states: "For this cost, you can help renew the schools of West Irondequoit." While a comparison of the various costs is fair game to help voters make an informed choice, this last statement goes beyond providing objective information when it implies that this money must be spent if the district is to ". . . renew the schools of West Irondequoit".

Also inappropriate as advocacy are remarks made during the program by the high school principal on "How life will become better" because of the construction project, and the statement of a project architect that: "West Irondequoit residents have an ideal opportunity to endorse a thorough recasting of their school facilities so that they may continue to support generations of students in their pursuit of academic excellence." Rather, district authorities should provide a factual list of what educational components the bond will support and leave to the voters the decision of whether these expenditures will make "life . . . better"; it is not the district's role to convince the voters that it will.

Finally, a program entitled "Generations of Excellence in West Irondequoit" consists of interviews with three generations of members of a family that either attended or currently attend schools in respondent district. The program conveys little objective, factual information, includes the opinions of family members in support of the proposed capital project, and as a whole constitutes an improper emotional appeal to support the project.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondents refrain from using district funds to advocate a partisan position with respect to matters that are the subject of a school district vote, in accordance with this decision.

END OF FILE